Trusts & Estates Law
5 Estate Planning Documents Every Texan Should Have
Contributors
Burcu Yildiz
Published
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7 min read
Most people think of estate planning as "getting a will." A will matters, but it only covers one piece of what can happen to you: your death. It says nothing about who pays your bills if you're in a coma, who makes medical decisions if you can't speak for yourself, or who takes care of your kids if you're incapacitated rather than deceased. Texas law recognizes five core documents that together cover both situations. Here is what each one does, and what happens if you skip it.
1. A Last Will and Testament
A will controls who receives your property and, if you have minor children, who you'd like appointed as their guardian. To make a valid will in Texas, you generally need to be 18 or older (or married, or a member of the armed forces), of sound mind, and the will must be in writing, signed, and witnessed by two people who are at least 14 years old. Texas also recognizes holographic wills, meaning a will written entirely in your own handwriting and signed, without witnesses. That said, a homemade will is far more likely to be challenged or misread than one drafted with an attorney's help, so the holographic option is best kept as a fallback.
2. Statutory Durable Power of Attorney
This document names someone, your agent, to manage your finances and property if you become unable to do so yourself. Texas has a standard form for this. Unlike a will, it doesn't need witnesses, but it does need to be signed and acknowledged before a notary, and it must include language stating that it survives your incapacity to actually be "durable." Without one, if you become incapacitated, your family may have to go to court and ask a judge to appoint a guardian just to pay your mortgage or access your bank accounts.
3. Medical Power of Attorney
A medical power of attorney names an agent to make health care decisions on your behalf if you can't make them yourself. It's governed separately from the financial power of attorney. Once properly executed and delivered to your agent, it stays in effect indefinitely unless you revoke it or regain capacity, and it gives your agent the authority to review your medical records and consent to or refuse treatment on your behalf.
4. Directive to Physicians (Living Will)
Sometimes called a living will, this document works differently from a medical power of attorney. Its main job is to record your treatment preferences directly, while a medical power of attorney names an agent to make health care decisions for you. Under Texas law, a competent adult can sign a written directive saying whether life-sustaining treatment should be given, withheld, or withdrawn if they have a terminal or irreversible condition and can no longer make or communicate treatment decisions. The two documents work together: the directive records what you want, and the agent named in your medical power of attorney can make health care decisions within the authority you gave them if you can't.
5. Declaration of Guardian in Advance of Need
This document is often overlooked. It lets you name, in advance, who you'd want a court to appoint as your guardian, of your person or your estate, if you're ever incapacitated and a guardianship becomes necessary. Texas law also lets you use it to name who you do not want serving in that role. Without this document, if a court ever needs to appoint a guardian for you, the judge decides based on statutory priority and the evidence in front of them, not necessarily the person you would have chosen.
A power of attorney and a declaration of guardian aren't redundant. The power of attorney lets your agent act without court involvement in the first place. The declaration of guardian only matters if, despite that planning, a court proceeding becomes necessary anyway, for example because there's no valid power of attorney, or because an agent isn't handling things properly.
How the Five Documents Compare
| Document | What It Covers | Who It's For |
|---|---|---|
| Last Will and Testament | Distribution of property after death; naming guardians for minor children | Anyone who wants to control what happens to their assets |
| Statutory Durable Power of Attorney | Financial and property decisions during incapacity | Anyone who owns property, has bank accounts, or pays bills |
| Medical Power of Attorney | Health care decisions during incapacity | Anyone who wants a trusted person making medical calls |
| Directive to Physicians | End-of-life treatment wishes | Anyone who wants their own wishes documented directly |
| Declaration of Guardian | Naming a preferred guardian in advance | Anyone concerned a court guardianship might become necessary |
What Happens If You Skip These Documents
If you die without a will, Texas's default inheritance rules decide who inherits, and the outcome often surprises people. For example, if you're married with children from a prior relationship, your spouse doesn't automatically inherit all of your shared property; your children from that other relationship are entitled to a share of it too. If you have no spouse and no children or grandchildren, Texas law decides how your estate is split among your relatives. If both your parents are alive, each gets half. If only one is, that parent gets half and the other half goes to your siblings, with a deceased sibling's share passing to their children. If there are no siblings or descendants of siblings, the surviving parent takes everything. If neither parent is alive, your siblings or their descendants inherit, and after them more distant relatives. That order comes from the statute, whatever you would have wanted.
These default rules are fact-specific, and the outcome depends heavily on your family structure, what property counts as shared versus individually owned, and other details particular to your situation. This overview is general information, not a prediction of how your estate would be handled. Talk to a licensed Texas attorney about how these rules would actually apply to you.
How We Can Help
ByLaw helps families across Texas, from Greater Austin to communities throughout the rest of the state, put these documents in place correctly the first time. Whether you're starting from scratch or updating a plan that hasn't been touched in years, we can tell you which of these five documents you need and make sure each one is executed the way Texas law requires.
Frequently Asked Questions
Do I need all five documents, or just a will?+
Most adults benefit from having all five, because they cover different situations. A will only takes effect after death. The other four documents protect you while you're alive but unable to make decisions for yourself, which is a gap a will can't fill.
Can I write my own power of attorney or does it have to use the state form?+
Texas doesn't require you to use the state's standard form for a durable power of attorney, but using it, or having an attorney draft one that meets the same legal requirements, reduces the chance that a bank or other institution refuses to honor it.
If I move to Texas from another state, do my old estate planning documents still work?+
It depends on the document and how it was executed. Rather than assume your out-of-state documents transfer cleanly, it's worth having a Texas attorney review them against Texas's specific requirements.
The content of this article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by use of this site. Laws, regulations, and individual circumstances change over time, so please consult an attorney for guidance specific to your situation.